Citation Nr: 9906814
Decision Date: 03/15/99 Archive Date: 03/24/99
DOCKET NO. 97-11 843 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for a claimed nasal
disorder.
2. Entitlement to an increased rating for the service-
connected shell fragment wound of the right shoulder,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Scott Craven
INTRODUCTION
The veteran had active service from April 1969 to April 1971,
and also served in the Army Reserve.
The Board of Veterans' Appeals (Board) received this case on
appeal from a November 1996 decision of the RO.
The veteran claims he is entitled to service connection for a
hearing disability and respiratory conditions. However,
these issues have not been developed for appellate review and
are referred to the RO for appropriate action.
(The issue of an increased rating for the service-connected
shell fragment wound of the right shoulder is the subject of
the Remand portion of this document.)
FINDINGS OF FACT
No competent evidence has been presented to show that the
veteran currently is suffering from a nasal disability due to
disease or injury which was incurred in or aggravated by
service.
CONCLUSION OF LAW
A well-grounded claim of service connection for a nasal
disability has not been presented. 38 U.S.C.A. §§ 1101,
1110, 5107, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303
(1998).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Historical Background
The service medical records show that, in June 1968, the
veteran's entrance examination revealed that his nose,
sinuses, lungs and chest were clinically normal. On
discharge examination in March 1971, his nose, sinuses, lungs
and chest were reported to be clinically normal. The veteran
indicated that he had never had sinusitis, asthma, shortness
of breath or trouble with his nose.
In December 1985, an enlistment examination from the Army
Reserve reported that the veteran's nose, sinuses, lungs and
chest were clinically normal. The veteran indicated that he
had never had sinusitis, asthma, shortness of breath, chronic
cough or trouble with his nose.
On VA examination in October 1996, the veteran claimed that
he had chronic asthma and chronic sinusitis. His lungs were
reported to be clear and he was diagnosed, in part, with
subjective report of asthma and chronic sinusitis.
Received in November 1996 was a letter from the veteran which
indicated that he had not been treated for asthma in service,
but that he currently had respiratory problems due to
inclement weather, bug infested areas and exposure to
chemicals while in the Republic of Vietnam.
Received in December 1996 was a November 1993 radiology
report of the chest from the Windsor Radiology Office, which
revealed that the veteran's lungs were clear and free of
infiltrate or consolidation. There was reported to be no
pleural thickening or effusion. The impression revealed, in
part, no evidence of an acute process in the chest.
Received in December 1996 were private medical records from
James G. Pattilla, M.D., reflecting treatment from 1991 to
1994. In August 1993, the veteran was reported to have
coughing and marked nasal congestion. His lungs were
reported to clear. In November 1993, his lungs were reported
to be clear. In February 1994, he was reported to have
complained about coughing and claimed to be concerned about
bronchitis. He was reported to have marked nasal congestion,
clear lungs and purulent material in both nares which were
noted postnasally in the epipharynx. He was assessed with
sinobronchitis.
Received in January 1997 were private medical records from
the Hartford Surgical Center, reflecting treatment in March
1990. The veteran was reported to have a long history of
nasal obstruction and to have had nasal polyps removed two
years before. He was reported to have surgery for bilateral
intranasal polypectomies and bilateral anterior
ethmoidectomies and was diagnosed with nasal obstruction
secondary to bilateral nasal polyps with ethmoid disease.
II. Analysis
The threshold question to be answered is whether the veteran
has presented a well-grounded (i.e., plausible) claim. If he
has not, the claim must fail and there is no further duty to
assist in the development of the claim. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1
Vet. App. 78 (1990).
In order to show that a claim for service connection is well
grounded, there must be competent evidence of (1) a current
disability; (2) incurrence or aggravation of a disease or
injury in service; and (3) a nexus between the in-service
injury or disease and the current disability. See Caluza v.
Brown, 7 Vet. App. 498 (1995). Although the claim need not
be conclusive, it must be accompanied by evidence, not just
allegations, in order to be considered well grounded. Tirpak
v. Derwinski, 2 Vet. App. 609 (1992).
If a veteran was exposed to a herbicidal agent during active
military, naval or air service, the following diseases shall
be service connected if the requirements of 38 C.F.R. §
3.307(a)(6) (1998) are met, even though there is no record of
such disease during service, provided further that the
rebuttable presumption provision of 38 C.F.R. § 3.307(d)
(1998) is also satisfied: Chloracne or other acneform
disease consistent with chloracne; Hodgkin's disease,
multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea
tarda; acute and subacute peripheral neuropathy; prostate
cancer; respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea); and soft-tissue sarcoma. 38 C.F.R. §
3.309(e) (1998). The diseases listed at 38 C.F.R. § 3.309(e)
(1998) shall have become manifest to a degree of 10 percent
or more at any time after service. 38 C.F.R.
§ 3.307(a)(6)(ii) (1998).
A veteran who served in the Republic of Vietnam during the
Vietnam era and has a disease listed at 38 C.F.R. § 3.309(e)
shall be presumed to have been exposed during such service to
a herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1998).
The veteran contends, in essence, that he has incurred a
nasal disability due to the inclement weather, bug infested
areas and exposure to chemicals that he encountered in
service.
However, the service medical records are negative for
complaint, treatment or diagnosis of a respiratory
disability. On discharge examination in March 1971, the
veteran's nose, sinuses, lungs and chest were reported to be
clinically normal and the veteran indicated that he had never
had sinusitis, asthma, shortness of breath or trouble with
his nose.
The first indication of any such respiratory disability was
in March 1990, where private medical records from the
Hartford Surgical Center reported that the veteran had had a
long history of nasal obstruction and to have had nasal
polyps removed two years before. He was diagnosed with nasal
obstruction secondary to bilateral nasal polyps with ethmoid
disease.
In August 1993, private medical records from James G.
Pattilla, M.D. reported that the veteran had coughing and
marked nasal congestion. His lungs were reported to be
clear. In February 1994, the veteran was assessed with
sinobronchitis.
On VA examination in October 1996, the veteran claimed that
he had chronic asthma and chronic sinusitis. His lungs were
reported to be clear and he was diagnosed, in part, with
subjective report of asthma and chronic sinusitis.
Although the veteran has been recently diagnosed with
sinobronchitis and chronic sinusitis, no competent evidence
has been submitted to support his lay assertions that he has
a nasal disability is due to disease or injury which was
incurred in or aggravated by service. The veteran's own
statements relating to questions of medical diagnosis or
causation lack probative value in this case. Lay assertions
concerning such questions of medical diagnosis or causation
cannot constitute competent evidence sufficient to render the
veteran's claim well grounded. Grottveit v. Brown, 5 Vet.
App. 91 (1992); Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
There is also no medical evidence of record demonstrating
that the veteran currently has any of the specified diseases
associated with exposure to Agent Orange, as delineated under
38 C.F.R. § 3.309(e) (1998). There also has been presented
no other medical evidence demonstrating that he has other
disability due to exposure to Agent Orange in service. See
Combee v. Brown, 34 F.3d. 1039 (Fed. Cir. 1994).
Thus, since the veteran has not presented medical evidence
demonstrating that he currently has a nasal disability due to
service, the Board must conclude that the veteran has failed
to meet his initial burden of producing evidence of a well-
grounded claim of service connection. See Caluza, supra.
In claims that are not well grounded, VA does not have a
statutory duty to assist the veteran in developing facts
pertinent to his claim. VA, however, may be obligated under
38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1998) to advise a
veteran of evidence needed to complete his application. This
obligation depends upon the particular facts of the case and
the extent to which the Secretary of VA has advised the
veteran of the evidence necessary to be submitted with a VA
benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995).
The Board finds that a remand is not required in this case.
The veteran has not put VA on notice that competent evidence
exists that supports his claim that he currently has a
respiratory disability, to include bronchitis, asthma,
sinusitis and loss of sense of smell, due to service.
Consequently, the RO has met its burden under 38 U.S.C.A.
§ 5103(a) (West 1991 & Supp. 1998) by informing the veteran
of the evidence necessary to complete his application for
benefits. By this decision, the Board is informing the
veteran of the evidence necessary to make his claim, as set
forth above, well grounded.
ORDER
Service connection for a nasal disorder is denied, as a well-
grounded claim has not been submitted.
REMAND
The veteran contends, in essence, that his service-connected
shell fragment wound of the right shoulder is severe enough
to warrant an increased rating.
On discharge examination in March 1971, the veteran was
reported to have a fragment wound of the right shoulder
without residual disability.
On VA examination in April 1997, the veteran indicated that
he had a right shoulder injury from shrapnel in Vietnam in
1971. He reported that the shrapnel had entered the anterior
aspect of his shoulder and that an attempt to remove it had
been unsuccessful. A large, slightly hyperpigmented scar,
was reported to be on the anterior aspect of the right
shoulder. The scar was reported to be tender to palpation in
an area over the anterior pectoralis musculature; however,
the extent of muscular injury to the shoulder area was not
clear. Range of motion of the shoulder was reported to be
full and painless. The veteran was diagnosed with shrapnel
wound of the right shoulder with no chronic sequela with
possible early impingement syndrome, most likely unrelated to
the shrapnel.
The veteran's claim for increased rating for shell fragment
wound of the right shoulder is well grounded in that it is
not inherently implausible. 38 U.S.C.A. § 5107(a) (West
1991). VA therefore has a duty to assist him in developing
the facts pertinent to his claim. See 38 U.S.C.A. § 5107
(West 1991 & Supp. 1998); 38 C.F.R. § 3.159 (1998); Proscelle
v. Derwinski, 2 Vet. App. 629 (1992); Littke v. Derwinski,
1 Vet. App. 90 (1990).
The duty to assist includes, when appropriate, the duty to
conduct a thorough and contemporaneous examination of the
veteran that takes into account the records of prior medical
treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). This
is to ensure that the evaluation of a disability is a fully
informed one.
Accordingly, the case must be REMANDED to the RO for the
following actions:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names and addresses of all health
care providers who have treated him for
his service-connected shell fragment
wound of the right shoulder since April
1997. Thereafter, the RO should obtain
legible copies of all records from any
identified treatment source not currently
of record. Once obtained, all records
must be associated with the claims
folder.
2. The veteran should be afforded a VA
orthopedic examination and any other
examination deemed necessary to determine
the current severity of the service-
connected shell fragment wound of the
right shoulder. The claims folder must
be made available to the examiner prior
to the examination. All indicated tests
must be performed. The examiner should
identify all scarring associated with the
veteran's wound in service and describe
any scar tenderness, ulceration, adhesion
and functional loss due to pain of the
right shoulder. The examiner should also
describe any neurologic and muscular
disability associated with the shell
fragment wound. See, e.g. 38 C.F.R.
§ 4.73 including Diagnostic Codes 5301,
5302, 5303 and 5304 (1998) for
specificity required.
3. After completion of the requested
development, the RO should review the
veteran's claim on the basis of all the
evidence of record. If the action taken
remains adverse to the veteran, he and
his representative should be furnished
with a supplemental statement of the
case. They should then be afforded a
reasonable opportunity to respond
thereto.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. The veteran needs to
take no action until he is informed.
The purposes of this remand are to further develop the record
and to afford the veteran due process of law. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO's to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
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